Citation Nr: 0026384
Decision Date: 09/29/00 Archive Date: 10/04/00
DOCKET NO. 98-13 939A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim of service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from April 1944 to December
1945. The veteran was a prisoner-of-war (POW) of the German
Government. He died in March 1988. The cause of death was
acute myocardial infarction due to arteriosclerotic heart
disease. No other causes of death were listed. At time of
death, the veteran was service connected for disabilities
including anxiety nears, rated as 30 percent disabling.
Service connection for the cause of the veteran's death was
denied by the RO in August 1988. The appellant was notified
of this decision and did not appeal.
By rating action in November 1988 and again in December 1995,
the RO denied the appellant's request to reopen the claim of
service connection for the cause the veteran's death. The
appellant was notified of these decisions and did not appeal.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a January 1998 decision by the
RO which denied service connection for the cause of the
veteran's death. The Board remanded the appeal to the RO to
comply with the appellant's request for a travel board
hearing. The appellant was scheduled for a hearing at the RO
in June 2000, but canceled due to poor health and
transportation problems. At that time, the appellant
requested to be rescheduled for another hearing at her local
RO office. The RO offered the appellant the opportunity for
a videoconference hearing before a member of the Board.
However, in a letter received in August 2000, the appellant
stated that she wished to withdraw her request for a hearing,
and that she wanted her claim to be forwarded to the Board
for appellate consideration.
As indicated in the March 2000 remand, service connection for
the cause of the veteran's death was denied by the RO, most
recently in December 1995. Although the RO adjudicated the
issue on a de novo basis in January 1998, the claim can only
be reopened upon submission of new and material evidence. In
this regard, the Board is required to conduct an independent
new and material evidence analysis in claims involving final
rating decisions. See Barnett v. Brown, 8 Vet. App. 1
(1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996). Accordingly,
the Board has recharacterized the issue to reflect the
appropriate adjudicatory question.
FINDINGS OF FACT
1. Service connection for the cause of the veteran's death
was last finally denied by an unappealed rating decision by
the RO in December 1995.
2. The additional evidence received since the December 1995
rating decision has not been considered previously and is so
significant that it must be considered in order to fairly
decide the merits of the claim.
3. There is a plausible claim of service connection for the
cause of the veteran's death.
4. The veteran served in combat during World War II.
CONCLUSIONS OF LAW
1. The December 1995 RO decision which denied service
connection for the cause of the veteran's death is final.
38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103
(1999).
2. New and material evidence has been submitted to reopen
the claim of service connection for the cause of the
veteran's death. 38 U.S.C.A. § 5108 (West 1991); C.F.R.
§§ 3.104(a), 3.156(a) (1999).
3. The claim of service connection for the cause of the
veteran's death is well grounded. 38 U.S.C.A. § 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A decision by the RO shall be final and binding on all field
offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification of the decision. A final and
binding agency decision shall not be subject to revision on
the same factual basis except by duly constituted appellate
authorities or except where there is clear and unmistakable
error in the decision. 38 U.S.C.A. § 7105 (West 1991); 38
C.F.R. §§ 3.104, 20.302 (1999).
As noted above, service connection the cause of the veteran's
death was last finally denied by the RO in December 1995.
The appellant was notified of this decision and did not
appeal. Because the present appeal does not arise from an
original claim, but rather comes from an attempt to reopen a
claim which was denied previously, the Board must bear in
mind the important distinctions between those two types of
claims. In order to reopen a claim which has been previously
finally denied, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108 (West 1991).
Section 5108 of title 38 of the United States Code provides
that, "[i]f new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim." The regulations provide that new
and material evidence means evidence not previously submitted
to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999).
Current caselaw provides for a three-step approach in
determining whether new and material evidence has been
presented to reopen a claim. First, it must be determined
whether new and material evidence has been presented under 38
C.F.R. § 3.156(a); second, if new and material evidence has
been presented, it must be determined immediately upon
reopening whether, based upon all the evidence and presuming
its credibility, the claim as reopened is well grounded
pursuant to 38 U.S.C.A. § 5107(A); and third, if the claim is
well grounded, the merits of the claim must be evaluated
after ensuring the duty to assist under 38 U.S.C.A. § 5107(b)
has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed.
Cir. 1998) and Winters v. West, 12 Vet. App. 203 (1999) (en
banc).
The Board notes that caselaw of the United States Court of
Appeals for Veterans Claims (hereinafter, "the Court")
mandated that an additional question had to be addressed;
that is, whether in light of all the evidence of record,
there was a "reasonable possibility that the new evidence,
when viewed in the context of all the evidence, both new and
old, would change the outcome" in the prior determination.
See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This
additional test was overruled in the Hodge case cited above.
Factual Background
The evidence of record at the time of the rating decision in
August 1988 included the veteran's service medical records;
several private medical statements, and VA examination
reports, including POW Protocol examinations in September and
October 1985.
The service medical records, VA records, and private medical
statements show no evidence of any cardiovascular disease,
including hypertension during service or prior to his death
in March 1988. An echocardiogram taken in conjunction with a
POW Protocol examination in September 1985 showed changes
suggestive of an old inferior wall infarction of undetermined
age. No other cardiovascular abnormalities were noted on
examination at that time. On a VA psychiatric examination in
September 1985, the veteran reported that he had no active
physical complaints or diseases, and that he was not taking
any medications.
Based on the above evidence, the RO denied service connection
for the cause of the veteran's death in August 1988. The
appellant was notified of this decision and did not appeal.
In October 1988, the appellant submitted a copy of an autopsy
report dated in March 1988. The pathologic diagnoses
included coronary artery disease manifested by severe
atherosclerosis of the left coronary artery; recent
infarction of the left ventricle, anterior/septum, and an old
infarction of the intraventricular septum.
Based on the above evidence, the RO denied service connection
for the cause of the veteran's death in November 1988. The
appellant was notified of this decision and did not appeal.
In October 1995, the appellant requested to reopen her claim
of service connection for the cause of the veteran's death
based on the evidence already of record. In December 1995,
the RO denied the appellant's claim. The appellant was
notified of this decision and did not appeal.
The evidence added to the record since the December 1995
rating decision includes VA treatment records (including
duplicate copies) from 1982 to 1988; a statement from a
private physician, D. Parsick, M.D., received in September
1996; a VA medical opinion from a staff cardiologist, and a
copy of a medical paper on the subject of the development of
hypertension in war veterans.
Analysis
The additional evidence, including the statement from Dr.
Parsick, is new as it was not previously considered by the RO
and provides additional information which suggests that the
veteran's death was related to a service-connected
disability. The statement is also material as it is so
significant that it must be considered in order to decide
fairly the merits of the claim. 38 C.F.R. § 3.156. Having
decided that Dr. Parsick July 1996 statement is new and
material, there is no need to discuss whether the other
evidence is likewise new and material as the claim will be
reopened solely on the basis of this evidence.
As the first step in the three-step analysis has been met, it
must next be determined whether, based upon all the evidence
and presuming its credibility, the claim as reopened is well
grounded pursuant to 38 U.S.C.A. § 5107(a). To sustain a
well-grounded claim, the claimant must provide evidence
demonstrating that the claim is plausible; mere allegation is
insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992).
The determination of whether a claim is well grounded is
legal in nature. King v. Brown, 5 Vet. App. 19 (1993).
A well grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of 38 U.S.C.A. § 5107(a). Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded,
a claim must be accompanied by supportive evidence, and such
evidence must justify a belief by a fair and impartial
individual that the claim is plausible. Where the
determinative issue involves a question of either medical
causation or diagnosis, medical evidence is required to
fulfill the well-grounded claim requirement of 38 U.S.C.A. §
5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995).
The three elements of a "well grounded" claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and (3) a nexus,
or link, between the in-service disease or injury and the
current disability as provided by competent medical evidence.
See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively,
the third Caluza element can be satisfied under 38 C.F.R.
3.303(b) (1999) by evidence of continuity of symptomatology
and medical or, in certain circumstances, lay evidence of a
nexus between the present disability and the symptomatology.
See Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this
case, the recent statement by Dr. Parsick constitutes
plausible competent medical evidence to support the
appellant's claim that the veteran's death was related to a
service-connected disability. Accordingly, the Board finds
that the appellant's claim is well grounded.
In addressing the final step of the analysis, the Board must
consider any due process issues as addressed by the Court in
Bernard v. Brown, 4 Vet. App. 384 (1993). Pursuant to
Bernard, the Board must consider whether addressing the claim
on a de novo basis would cause prejudice to the veteran. In
this regard, the Board finds that the case must be remanded
to the RO to fulfill the duty to assist under 38 U.S.C.A.
§ 5107(b), and to afford the appellant an opportunity to
present evidence and argument in support of her claim. Thus,
due process considerations will be afforded the veteran in
connection with the REMAND decision.
ORDER
To the extent that new and material evidence has been
submitted to reopen the claim of service connection for the
cause of the veteran's death, the appeal to reopen is
granted.
REMAND
In view of the favorable decision by the Board that new and
material evidence has been submitted to reopen the claim of
service connection for the cause of the veteran's death, the
RO must now consider the issue on a de novo basis.
Accordingly, the case is REMANDED to the RO for the following
action:
1. The RO should take appropriate steps
to contact the appellant and obtain the
names and addresses of all medical care
providers who treated the veteran for any
cardiovascular problems, including
hypertension since his discharge from
service. The appellant should also be
asked to provide the names of any
medications the veteran took for
hypertension and the name of the
physician who prescribed it. Based on
her response, the RO should attempt to
obtain copies of all such records, not
already obtained, from the identified
treatment sources, and any additional VA
records, and associate them with the
claims folder. Of particular interest
are copies of any records from Dr. D.
Parsick, 399 North Ninth St., Scranton,
PA 18504 for the period 1975 to 1988.
This physician should also be requested
to furnish the reasons and based, with
citation to accepted medical literature,
supporting the conclusions reached in his
1996 letter. If the RO does not receive
a response to requests for records from
any of the private sources identified by
the appellant, she should be so notified
and informed that she may obtain and
submit any pertinent records.
2. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
38 C.F.R. § 4.2 (1999).
3. After the requested development has
been completed, the RO should
readjudicate the appellant's claim on a
de novo basis, with application of all
appropriate laws and regulations, and any
additional information obtained as a
result of this remand. If the benefits
sought on appeal remain denied, the
appellant and her representative should
be furnished a Supplemental Statement of
the Case, and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. The Board intimates
no opinion, either legal or factual, as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. The appellant has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals